Thomas R. Julin: Doctors should have right to ask you about your guns

July 5, 2012|By Thomas R. Julin

Don't be surprised if your doctor asks you about the weather, new restaurants, who should be president, or your ownership of firearms and ammo. Doctors, you see, have First Amendment rights just like the rest of us — and that means they cannot be confined by law to asking you where it hurts or whether you've been taking your medication.

This is the ruling last Friday from U.S. District Judge Marcia Cooke. It's not only is legally sound. It makes good common sense.

The decision came in a federal lawsuit, Wollschlaeger v. Farmer, challenging a new Florida law. That law had been crafted by the National Rifle Association after it learned that an Ocala doctor not only had the audacity to ask a young patient's mother about her gun ownership, but then refused to treat the mother's child when the mother declined to answer.

After the matter drew national attention, the NRA discovered this was not an isolated incident. Many doctors across the country, especially pediatricians alarmed by increasing numbers of accidental shootings, put questions about guns on their standard patient checklists so they can dispense gun safety advice. Gunshot wounds account for 1-in-25 admissions to pediatric trauma centers in the United States, according to the American Academy of Pediatrics.

The mere asking of the questions, the NRA argued in Tallahassee, interfered with the patients' fundamental Second Amendment right to bear arms. While this did not make any logical sense, many state legislators apparently recognized the opportunity to attract campaign contributions from one of the nation's most well-funded lobbying organizations. Gov. Rick Scott also gladly signed the bill into law and vowed to defend its constitutionality.

The governor's involvement in the matter is surprising in light of his background in the healthcare industry, his opposition to excessive government regulation, and his recent vow to continue the fight against Obamacare despite its now established constitutionality. "The State," Judge Cooke held, "through this law, inserts itself into the doctor-patient relationship, prohibiting and burdening speech necessary to the proper practice of preventive medicine." One would think the governor might have made this argument to the Legislature himself.

Judge Cooke also ruled that trying to justify the law as necessary to protect Second Amendment rights is nothing more than a "legislative illusion." The law does nothing to prevent anyone from buying or owning a gun and the judge found that doctors generally ask questions about guns "to provide truthful, non-misleading information" to their patients. The constitution, she held, protects the right to do so irrespective of whether the questions are relevant to a patient's medical safety at the time.

A doctor, the judge wrote, is free to be an advocate who warns a patient about the dangers of developing diabetes, children riding bikes without helmets, or smoking irrespective of whether the patient is facing an imminent medical problem from any of these risks.

The law contained an exception allowing doctors to ask patients about firearms when they have a good faith belief that the questions are relevant to "the patient's medical care or safety, or the safety of others." The NRA argued this exception should save the law because it ensured doctors could give the advice they claimed they wanted to give. But Judge Cooke wisely held the relevance standard is too vague and would chill many doctors from engaging their patients in any discussion of guns at all. In fact, many doctors immediately altered their checklists when the law was passed last year.

The fact of the matter is the NRA asked the Legislature to pass this law to censor doctors who might advocate gun control legislation the NRA opposes. Doctors who see children bearing bullet holes on a regular basis can be very powerful advocates. The Legislature foolishly indulged the NRA request and violated the First Amendment in the process.

Gov. Scott would do well now to give Judge Cooke's opinion a very close reading. He likely would find that he agrees with much of what she has to say and that the state has no grounds to appeal.

Thomas R. Julin chairs the First Amendment litigation group of the international law firm Hunton & Williams LLP. He represented the Broward County Medical Association, the Broward County Pediatric Society, and other organization as friends of the court in Wollschlaeger v. Farmer.